Texas ballot access has been eased for 2012, both for minor parties and independent candidates. This is not because the legislature wanted to ease the requirements, but because of the accident that the primary originally set for March 6 will not be until May 29 at the earliest. The change in the primary date is because Texas redistricting is tied up in court. The case is Perez v State, in San Antonio’s federal court.

The Texas Secretary of State has told Americans Elect representatives that in 2012, the petitioning period runs from March 6 through May 28. Because this is before the primary, the state will not enforce the law that says people who voted in the primary cannot sign the petition for a new party.

Texas has required petitions for new parties to get on the ballot ever since 1967. This is the first year in which the "primary screen-out" will not be in force for such petitions.

Texas will also be providing easier ballot access for independent presidential candidates. Unlike the law concerning minor party petitions, the Texas law for independent presidential candidates is not dependent on the date of the primary. The law flatly says the deadline is the second Tuesday in May, which, this year, is May 14. However, the law also says that the independent presidential candidate petition cannot start until the day after the primary.

Because a law that says a petition can’t start until May 30, but is due on May 14, is logically absurd, Texas effectively has no independent presidential petition procedure in place. The last time that was true, in 1976, the U.S. Supreme Court put independent presidential candidate Eugene McCarthy on the ballot even though he had not submitted any petition.

The Texas legislature does not meet in 2012, so the legislature can’t fix the problem. It is extremely likely that an independent presidential candidate will file a lawsuit very soon, and it is difficult to imagine that the state won’t give in and acknowledge that the lack of any workable procedure is unconstitutional.

ACCESS BILLS ADVANCE IN SIX STATES

Alabama: on February 14, the Senate committee that handles election law bills passed SB 15 unanimously. It lowers the number of signatures for a newly-qualifying party from 3% of the last gubernatorial vote (44,829 signatures) to exactly 5,000 signatures. It also eases independent candidate petitions.

Georgia: on February 18, the House Government Committee passed HB 949, which lowers the number of signatures for independent candidates, and the nominees of unqualified parties, by approximately 25%. Current law says statewide petitions need signatures of 1% of the number of registered voters, and district petitions need 5%. The bill keeps the same percentages, but changes the base from the number of registered voters to the last presidential vote. For example, if the bill is signed into law, the statewide petition this year would drop from 50,334 signatures to 39,245 signatures.

Missouri: on February 23, the House Rules Committee passed HB 1236. It removes the need for an unqualified party to list its nominees for presidential elector on the petition, and the party’s presidential nominee on the petition. If it is signed into law, in the future, parties could petition in presidential years before they have chosen presidential electors or a presidential nominee.

Nebraska: on February 8, the Senate Government, Military & Veterans Affairs Committee amended LB 1035 to include a provision that makes it easier for parties to remain ballot-qualified. Current law says a party must poll 5% for a statewide race every two years. The new provision in LB 1035 says if it passes the vote test, it remains ballot-qualified for the next four years.

Also in Nebraska, on January 31 the same Committee passed LB 759, which removes the ban on out-of-state circulators.

Utah: on February 15, the House passed HB 233 by 66-4. The bill makes it easier for a party to remain ballot-qualified. Current law requires it to poll 2% for a statewide office every two years. The bill says when a party passes the vote test, it is then ballot-qualified for the next four years.

Virginia: during February, four helpful bills made headway. On February 24, the legislature passed HB 1133, which repeals the district residency requirement for petitioners. On February 3, the House passed HB 1132, which legalizes write-in votes in primaries. Virginia already allows write-ins in general elections.

On February 9, the House passed HB 736, which moves the primary in 2012 from June 12 to August 7, and which also moves the petition deadline for non-presidential independent candidates, and the nominees of unqualified parties, from June to August, for 2012 only.

On February 14, the House passed HB 1151, which says 2012 petitions can circulate even before the new U.S. House district boundaries are known. The bill says the petitioners should use the district boundaries that existed from 2001-2010.

VIRGINIA VICTORY

On February 8, U.S. District Court Judge Henry Hudson, a Bush Jr. appointee, ruled in Lux v Judd, 3:10-cv-482, that Virginia’s in-district residency requirement for petitioners is unconstitutional. His decision expresses no opinion about the constitutionality of banning out-of-state circulators.

In 2010, Judge Hudson had upheld the same law that he has now struck down. He changed his mind because in 2011, the 4th circuit issued an opinion in this case, saying that the state can’t defend the in-district requirement on grounds that it wants to block candidates without support. The 4th circuit pointed out that anyone is free to hire petitioners, and paid petitioners are working to earn money, not because they necessarily support the candidate they are working for. The 4th circuit then sent the case back to see if the state had any other rationale, but the state couldn’t really come up with anything.

The only states that still have in-district residency requirements for petitioners now are California and Pennsylvania. In California, the Secretary of State claims she doesn’t enforce the in-district residency requirement, but, she has not told county elections officials that she doesn’t enforce it, and San Francisco and Alameda County election officials this year have been enforcing it. Pennsylvania’s in-district residency requirement was struck down in federal court in 2002, for general election petitions; but the state keeps enforcing it for candidates who petition to get on a primary ballot.

The lawsuit filed last December by Texas Governor Rick Perry, against Virginia’s ban on out-of-state circulators, probably would have resulted in an opinion that Virginia’s out-of-state ban is unconstitutional. That case was Perry v Judd. The judge in that case, John Gibney, an Obama appointee, already wrote that the out-of-state ban is almost certainly unconstitutional. Unfortunately, Perry then dropped out of the case.

Because Perry, and the other Republican presidential candidates who had intervened in his case, all dropped out, the case is dead without ever having received declaratory relief. Fortunately, the Green and Libertarian Parties will probably soon file a new lawsuit against the out-of-state circulator ban. Chances are the case will be assigned to Judge Gibney, since it is a related case.

ALABAMA, OKLAHOMA LAWSUITS ADVANCE

Two important ballot access cases filed by minor parties in January are moving ahead quickly. The Oklahoma case will have oral arguments on March 12, on the Libertarian Party’s request for a later petition deadline, or fewer signatures. The judge is urging the parties to settle. It is possible the state will agree that newly-qualifying parties this year don’t need their own primary. If that happened, there would be no need for the signatures to be due on March 1.

The Alabama case had a status conference on February 16. The minor party plaintiffs agreed to submit evidence by February 24, and they kept their promise. The state will now review that evidence and then report back on whether it agrees that the case can be expedited, or whether depositions are needed.

Both cases challenge March petition deadlines for petitions for parties to get on the ballot. The Alabama case is Stein v Chapman, m.d., 2:12-cv-42. The Oklahoma case is Libertarian Party of Oklahoma v Zeriax, cv12-119.

CALIFORNIANS LOSE WRITE-IN RIGHTS

On February 10, California Governor Jerry Brown signed AB 1413, to remove write-in space from the November ballot for Congress and state office. California and Louisiana are now the only two states that have ever had write-in space on the November ballot for all office, but which no longer have it.

SAN FRANCISCO INSTANT RUNOFF

San Francisco is the most populous jurisdiction in the U.S. that uses Instant Runoff Voting. On February 14, the Board of Supervisors tabled a bill that would have asked the voters if they wish to retain IRV.

Oakland, California is the second most populous jurisdiction in the U.S. that uses IRV for its own elections. Opponents of IRV say they are about to try to collect 29,050 valid signatures to ask the voters if they wish to repeal IRV.

MORE LEGISLATIVE NEWS

Arizona: on February 6, the Senate Judiciary Committee passed SCR 1021, which will put a measure on the November 2012 ballot asking voters if they wish to end public funding for candidates for state office.

Georgia: on February 22, the Georgia Senate Ethics Committee defeated SB 377, which would have required circulators to sign under penalty of perjury that everyone who signed the petition showed government photo-ID before signing.

Idaho: on February 23,
the legislature passed HB 391, which abolishes the May presidential primary, effective this year. The Democratic and Republican Parties had been using caucuses anyway.

Missouri: SB 773, which postpones the deadline for candidates to file in the non-presidential primary from March 27 to April 24, has passed both houses, but the bill is still not through the legislature because the House amended the bill and the Senate hasn’t yet agreed with the House amendments.

New York: on February 16, the Assembly Election Law Committee passed A9271, which moves the independent candidate petition deadline from August to May. This bill, if enacted, would violate Anderson v Celebrezze.

MORE LAWSUIT NEWS

Arizona: on February 7, the State Supreme Court agreed with a lower court that Alejandrina Cabrera may not run for city council of San Luis, because she does not speak English well enough. State law says candidates must know English, but does not set standards. The candidate has some proficiency in English.

California: on March 6, Tuesday, at 9 a.m., a Superior Court will hold oral arguments in Rubin v Bowen, RG11-605-301. This is the lawsuit filed by the Peace & Freedom Party, the California Libertarian Party, and the Alameda County Green Party, against the essence of the top-two system. The judge had earlier asked for supplemental briefing on whether the California Constitution gives more protection to voting rights than the U.S. Constitution. This is considered a good sign for the lawsuit.

District of Columbia: on February 10, the U.S. Court of Appeals in D.C. heard Libertarian Party v D.C. Board of Elections, the case over whether write-in votes for declared presidential write-in candidates in November must be counted. The Board says that it is too much trouble to count such votes. One judge, David S. Tatel, a Clinton appointee, seemed to agree with the Board. Another judge, Brett Kavanaugh, a Bush Jr. appointee, did not seem to agree with the Board, and noted that most states manage to count such write-ins. The third judge, Merrick Garland, a Clinton appointee, seemed difficult to predict.

Indiana: on February 4, Charlie White, a Republican, who had been elected Secretary of State in 2010, was convicted of voter fraud. Specifically, he had voted at the May 2010 primary from an address at which he did not live. He is no longer Secretary of State, and the State Supreme Court hears arguments February 29 on whether his permanent replacement should be the Democratic nominee from 2010, or a Republican who would be appointed by Governor Mitch Daniel.

Massachusetts: on February 9, the State Supreme Court heard arguments in Libertarian Political Association v Galvin, over whether state law permits stand-in presidential and vice-presidential candidates on petitions. One of the justices asked the attorney for the Secretary of State what would happen if, in 1992, Ross Perot’s vice-presidential running mate had died during the summer. The Secretary of State’s attorney responded that Perot would need to file an entirely new petition, listing a new vice-presidential nominee. Then the justice asked what would happen if the death was at or after the July petition deadline. The state’s attorney said Perot would "just be out of luck." It seems likely that the Court will rule in favor of substitution.

Montana: on December 30, 2011, the State Supreme Court upheld a state law that forbids corporations from making independent expenditures for or against any candidate for state or local office. On February 17, the U.S. Supreme Court issued a stay of the Montana Supreme Court decision. The Montana Supreme Court decision seems to conflict with the U.S. Supreme Court opinion of January 2010, Citizens United v FEC.

Montana: On February 21, Cal Zastrow, former Field Director for the Constitution Party, filed a federal lawsuit to overturn a Montana law that says ministers and priests may not, other than by public speech or print, urge or persuade any voter to vote for or against a candidate. Zastrow v Bullock, 12-cv-18.

New Jersey: on February 16, the State Supreme Court upheld the state’s one-year residency in the district for candidates for the Legislature. In re Contest of Nov. 8, 2011. Gabriela Mosquera, the candidate who won the election, thus lost her seat. However, because the seat is now vacant, and because the winner is a Democrat, the Democratic Party is free to re-appoint her, because by now she meets the requirement.

North Dakota: on February 21, the Libertarian Party asked the U.S. Supreme Court to hear its ballot access case. State law prohibits a party from placing a nominee on the general election ballot for state legislature unless between approximately 10% and 15% of all the voters who turn out to vote in the primary choose that party’s primary ballot. This restriction has kept all minor party legislative candidates off the North Dakota general election ballot since 1976. Libertarian Party of North Dakota v Jaeger.

Ohio: on February 8, a U.S. District Court in Cincinnati ruled that the Equal Protection part of the 14th amendment requires that if the government counts some kinds of provisional ballot, it must count certain other kinds of provisional ballot. Courts rarely use Equal Protection to strike down election law policies, so this is an important decision. Hunter v Board of Elections. The government will appeal.

Ohio (2): on February 13, the 6th Circuit ruled that when a city turns over a public park to a private organization for one day, the sidewalks in that park continue to be open for First Amendment activity. Bays v City of Fairborn, Ohio, 10-4059.

Texas: on February 17 a State Appeals Court ruled that a recall against the Mayor of El Paso should be canceled, even though the recall petition had enough signatures. The basis for the ruling is that a church organized the petition drive, and the church is incorporated. Texas law says contributions can’t contribute to political campaigns. Cook v Tom Brown Ministries, 08-11-367-cv. The case will probably be appealed to the Texas Supreme Court.

NEW MEXICO GIVES UP STRAIGHT-TICKET

On February 24, the New Mexico Secretary of State said the state will no longer put a straight-ticket device on general election ballots. A bill to authorize the devices failed to pass in the legislature this year.

The author is a professor of both Political Science and History. This is the first book that combines compelling arguments in favor of fair treatment for minor parties and independent candidates, with a comprehensive history of minor parties and independent candidates for the entire history of the country. If any small public library has room for only one book on these subjects, this is the book it should stock. The book covers not only the well-known minor parties, but virtually all of them which had even the smallest significance.

Gillespie wrote Politics at the Periphery: Third Parties in Two-Party America, in 1993. In the almost 20 years since that was published, Gillespie has continued studying minor parties, and interacting with other academics, as well as testifying in court in lawsuits involving minor parties and independent candidates. He has a list of 65 important policy proposals that various minor parties advocated over the nation’s history. He writes, "In the public discourse about direction, policy, and process in the United States, third parties have long contributed ideas. They continue to offer them today. Not all of these ideas originated with minor parties, but minor parties characteristically adopted and pushed them before either major party arrived on the scene. Many of the ideas they offered proved to be useful, important, even necessary; many, but not all: some were ill considered and unworkable, dangerous or mean spirited. Some of their ideas have been reformist, progressive, or radical…Many have been passed as policy. Many have not. Some are pending today."

Among the appendices are those which list all minor party and independent governors in the nation’s history, all the minor party members of Congress in the nation’s history (starting with the Anti-Masonic Party in 1828), and all the independent members of Congress since World War II.

Belva Lockwood was the presidential nominee of the Equal Rights Party, in both 1884 and 1888. I had never taken the Equal Rights Party, or Belva Lockwood’s campaign, seriously, because no state reported any votes for slates of presidential elector pledged to Lockwood in those elections. However, the book documents that Lockwood did organize slates of presidential elector candidates pledged to her, and ballots bearing the names of these slates were distributed to voters.

What this means is that election officials were so prejudiced against a woman running for President in the 1880’s that they simply disobeyed election laws, and did not count her votes. Back then, as most readers of this newsletter already know, there were no government-printed ballots. Parties and candidates printed up their own ballots and distributed them to voters, and hoped voters would cast them. In some ways that was a golden age, because the government had no ability to prevent anyone from running for office. But if government then refused to count some of those votes, the freedom to vote in 19th century America wasn’t worth as much as we might have imagined.

The book even has pictures of some of the ballots printed by the Equal Rights Party. And the book shows that Lockwood’s campaign was very well publicized.

Some of the nation’s leading newspapers and magazines printed editorial cartoons about her. Lockwood was a very accomplished attorney. She campaigned for years to force the U.S. Supreme Court to change its rules to permit women attorneys to argue in front of that Court. After a decade of struggle, she won that fight, and did argue in the U.S. Supreme Court, the first woman to do so. In 1986 a U.S. postage stamp, commemorating her, was issued. The book is a very good read for anyone interested in the struggle for civil rights for women, and also for anyone in the history of the practice of law in the U.S. as it was in the 1870’s and 1880’s. The book has a foreward by Supreme Court Justice Ruth Bader Ginsburg.

This book contains chapters authored by experts on the electoral college, including law professors, historians, and political scientists. There are articles in favor of the National Popular Vote Plan, and articles against the Plan.

Also, there is a fascinating chapter by Robert M. Alexander called "Lobbying the Electoral College." The author surveyed presidential electors from the 2000 election and the 2004 election, to determine how many of them were "lobbied" to change their votes to vote for someone for President other than the person they were expected to vote for. The surprising result is that not only were most electors contacted, 9% of them
say they seriously thought about voting for someone in the electoral college other than the person they were expected to support.

The book also describes the many efforts throughout history to change the Electoral College. Some of these efforts made substantial headway, passing one house of Congress.

The Justice Party is on in Mississippi, has submitted petitions in Hawaii and Utah, and has started in North Carolina. It hopes to persuade the Independent Party of New Mexico to change its name to the Justice Party.

VIRGIL GOODE SEEKS CONSTITUTION PARTY NOMINATION

On February 21, former Virginia Congressman Virgil Goode announced that he will seek the Constitution Party’s presidential nomination. He has been on the party’s national executive committee since 2010. He was first elected to Congress as a Democrat in 1996. In 2000 he ran for re-election as an independent and ea
sily won. In 2002 he ran as a Republican. He was defeated for re-election in 2008 by fewer than 800 votes.

Assuming he receives the Constitution Party nomination, and assuming Gary Johnson receives the Libertarian nomination, and assuming Buddy Roemer receives the Americans Elect nomination, that will mean that 2012 will be the first presidential election in U.S. history in which five parties ran presidential nominees who had previously served as Governors or in Congress.

SOCIALIST EQUALITY PARTY

On February 13, the Socialist Equality Party announced that its national ticket will be Jerry White for President and Phyllis Scherrer for Vice-President. The party was once known as the Workers League. Its highest presidential vote was in 1988, when it received 18,693 votes.

The Socialist Workers Party recently said that it will announce its national ticket in mid-March. That will make five parties with "Socialist" or "Socialism" in their names that have presidential nominees in 2012. The others are the Socialist Party, the Party for Socialism and Liberation, and the Freedom Socialist Party.

AMERICAN INDEPENDENT PARTY

The American Independent Party, a ballot-qualified party in California, will hold its presidential convention June 8-10, either in Sacramento or West Sacramento.

The American Independent Party was the California unit of the Constitution Party during the years 1992 through 2008, but in 2008 the faction of the state party recognized by the Secretary of State disaffiliated the AIP from the national Constitution Party, and nominated Alan Keyes for President. No one knows whether the AIP will nominate the same presidential candidate in 2012 that the Constitution Party nominates. The Constitution Party national convention will be in April.

Although the AIP has its own presidential primary, that primary is not binding.

COFOE ANNUAL MEETING

The Coalition for Free & Open Elections (COFOE) was founded in 1985. It is a loose coalition of the nation’s nationally-organized minor parties, plus other organizations that support ballot access reform. The annual meeting will be in Baltimore on July 15. Contributions to COFOE have made possible many ballot access lawsuits. COFOE’s most recent project has been to assist the pending lawsuit in the Vermont Supreme Court, over whether the state’s June petition deadline is too early.

ERRATA

The February 1, 2012 Ballot Access News carried a chart showing the number of registered voters in each party in each state. The entry for the Massachusetts Libertarian Party was 15, but the correct entry should have been 15,140. The national Libertarian registration total should have been 282.357 voters, .29% of the number of registered voters in all the states that have registration by party. That is the largest national Libertarian registration total in the party’s history.

SUBSCRIBING TO BAN WITH PAYPAL

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Texas does not permit voters to affiliate with more than one party in an election year. Affiliation can occur by voting in a primary, or participating in a convention, or signing a supplemental party petition. Signing a supplementary petition is technically not an affiliating act, but it has the same restrictions and effects as affiliating, so it is consequentially the same.

A voter who has voted in a primary, participated in a convention, or signed another party’s petition may not sign a party petition (if they do, their signature is invalid).

A voter who signs a party supplemental petition, may not vote in a primary, participate in another party’s convention, or sign another party’s petition.

Ordinarily, the primary is before the precinct conventions that trigger the beginning of the supplemental petition signing (the petition supplements the attendance lists from the precinct conventions). But if someone didn’t vote in the primary and then signed a party petition, they could not vote in the runoff.

This year, with the primary after the precinct conventions, persons who sign the petition will become ineligible to vote in the primary. And the primary occurs before the end of the signature collection deadline, so those voters won’t be able to sign the petition after voting in the primary.